The case is now before the Court on the defendant's post trial motions, one being a motion to dismiss the indictment or, in the alternative, to allow defendant's counsel to inspect the grand jury minutes, and the other being a motion for judgment of acquittal or, in the alternative, for a new trial. The Court heard arguments by counsel, and has carefully considered the record in this case, including the briefs filed by the parties, including the defendant's supplemental brief filed in late January 1984. After giving careful consideration to the motions, and the oppositions thereto, the Court concludes that the motions should be denied.

I

Very briefly, the indictment alleges that the defendant, as a director and/or chief executive officer of P.I. Properties, Inc., Pride International, Inc., Sticks and Stone, Inc., Youth Pride Economic Enterprises, Inc., Pride Economic Enterprises Special Police, Pride Environmental Services, Inc., T. Barry Associates, Inc., and Youth Pride, Inc., entered into a conspiracy with the other named defendants, in which the object was for the defendants to "unjustly and illegally enrich themselves and the other businesses which they directed and controlled, by using P.I. Properties to acquire Clifton Terrace and thereafter to misappropriate, misapply, divert and steal monies and assets from Clifton Terrace and the other housing projects which P.I. Properties owned or managed and to hide, conceal and coverup such misappropriation, misapplication, diversion and theft. The property owned or managed by P.I. Properties was Clifton Terrace Apartments, a three building housing complex consisting of 285 rental units located at 1308, 1312 and 1315 Clifton Street, Northwest, in the District of Columbia, which from in or about April 1974 to in or about June 1975 was owned by the Department of Housing and Urban Development (HUD) and managed by P.I. Properties or its predecessor Pride International, and from in or about July 1975 to in or about August 1978 was owned and managed by P.I. Properties. The other properties consisted of Buena Vista Apartments, a 54 unit apartment complex located at 3223 and 3229 Buena Vista Terrace Southeast, and on Shipley Terrace Southeast in Washington, D.C., which was owned by Pride Economic Enterprises and on or about November 1974 to on or about July 1977 was managed by P.I. Properties, and the Kenesaw Apartments, an 85 unit apartment complex located at 3060 16th Street, Northwest, which complex was owned by the Antioch School of Law and from May 1976 to about September 1977 was managed by P.I. Properties.

The grand jury can act on testimony which in a trial would be incompetent evidence. United States v. Levine, 700 F.2d 1176, 1179 (8th Cir.1983). There is no "rule permitting defendant [] to challenge [the] indictment [] on the ground that [it is] not supported by adequate and competent evidence." Costello v. United States, 350 U.S. 359, 363-364, 76 S. Ct. 406, 409, 100 L. Ed. 397 (1956). The defendant has the opportunity to defend at trial and is then "entitled to a strict observance of all rules designed to bring about a fair verdict." Id.

Finally on this point, "so long as the Grand Jury itself is not 'tainted' in the sense that it was improperly constituted, or that its members were necessarily biased, its actions, if valid on their face, are valid." Coppedge v. United States, 114 U.S.App.D.C. 79, 83, 311 F.2d 128, 134 (1962), cert. denied, 373 U.S. 946, 83 S. Ct. 1541, 10 L. Ed. 2d 701 (1963) (citation omitted).

The Court can find no basis for either dismissing the indictment in this case, which has already been fully presented before a trial jury, or requiring the Government to produce the grand jury minutes for inspection by the defendant's counsel. So much of the motion as requests dismissal is without merit because the defendant has made no showing that Laney committed perjury when she testified before the grand jury, or for that matter, during the trial. And, clearly, there is no evidence that if she committed perjury, the government knowingly presented that testimony before the grand jury. So much of the motion as requests the minutes for inspection by defendant's counsel is without merit for the same reasons. Moreover, the motion to inspect is untimely, since the defendant could have raised those issues during the trial when Laney was still on the stand. The defendant's counsel had a weekend to review Laney's grand jury testimony, and by her counsel's own statements, they had done so and had carefully weighed the matters set forth in the transcript. Although the defendant may dispute Laney's testimony, the fact is that there has been no showing that there was not some evidence to sustain the indictment. 114 U.S.App.D.C. at 83, 311 F.2d at 134.

We have encountered a document entitled, "Summary of Specific Items from June 1976 Schedules A, B, C." stuck in a folder for August 1977 A, B, C, Report Schedules. We question as to whether this document was received into evidence, and therefore whether the jury should consider it.

In response to the above note, the Court immediately sent the following reply:

July 15, 1983

To the Jury:

Please send the document to me by the Marshal and do not review the document until you receive further instructions from me.

You may continue your deliberations.

Within a few minutes the Deputy Marshal returned to the Court with the document. Once the document was received it was reviewed with counsel and it became apparent that the document was not in fact in evidence. The defendant moved for dismissal of the false statement counts but that motion was denied. The defendant did not move to dismiss counts one or two, and she did not move for a mistrial on either of those counts.

The defendant's motion was denied after the Court heard argument by counsel and after the Court compared the Summary with the transcript of Agent Buvia's testimony. The Summary was consistent with the Agent's testimony, and it contained nothing which was not included in the testimony of the Agent. Some of the information set forth in the Summary had also been included in the testimony of Zellane Laney.

At that time, the Court concluded that there was nothing in the Summary, which if seen by the jury, would cause prejudice to the defendant. At most, the Summary was cumulative of the testimony given by the Agent. The Court also found that the document was inadvertently sent to the jury.
*fn1"

The Court heard arguments on the defendant's motions on the evening of July 15, 1983 and the morning of July 16, denied the motions on July 16 and sent the following note to the jury:

July 16, 1983

To the Jury:

The document you sent to the Court yesterday is not in evidence. You must not consider it during your deliberations.

The second document at issue is a letter dated February 1, 1977 from Nathan Wasser, an attorney, to James Clay, then Area Director of the Department of Housing and Urban Development (HUD). That document, a copy of which is now marked as Court Exhibit 5, was allegedly found by counsel for the defendant on August 8 or 9, 1983, when they were reviewing the two boxes of original Government exhibits which had been submitted to the jury. The defendant's counsel state in their memorandum in support of their motion, that their review of the documents was conducted in the Courtroom Division of the Clerk's Office under the supervision of one or two deputy clerks. Court Exhibit 5A, is Mr. Wasser's letter. Attached thereto is Court Exhibit 5B, which is a draft of a letter which was eventually sent to Mr. Clay by the defendant on February 9, 1977. The original of the letter was received in evidence as Government Exhibit 191. When that exhibit was offered in evidence, it was offered without objection by the defendant.

Initially, the Court must observe that the defendant has misstated the issue as to the three documents. The defendant argues that she is entitled to a new trial because of the " submission to the jury by the Government of documents not in evidence" (emphasis the Court's). Of course, the fact is that the Government did not submit the documents to the jury at all. Neither the Government nor the defendant submitted any documents to the jury, and neither party had any contact with the jury.

Second, while the defendant asserts that the Summary was sent to the jury "with the Government Exhibits", it has not been established whether counsel for the Government or counsel for the defendant had possession of the document just prior to the documents being boxed for submission to the jury. Both parties had access to the exhibits before they were submitted to the jury, and counsel for both parties examined and used the exhibits during the course of the trial, and counsel for both parties removed and reinserted various exhibits in and out of the many exhibit folders during the course of the trial. Moreover, keeping in mind the thousands of documents in this case, hundreds of which were admitted into evidence, it seems reasonable to conclude that the document was inadvertently placed with the exhibits admitted into evidence and thereby found their way to the jury. There is no evidence that the documents were deliberately commingled with the evidence.

The leading case on the receipt by the jury of documents or other materials not actually admitted into evidence is Dallago v. United States, 138 U.S.App.D.C. 276, 427 F.2d 546 (1969). The defendant argues that Dallago indicates that the Court grant the motion for a new trial in this case. This Court disagrees.

The Clay draft letter, like the Summary was not an exhibit which was determined to be inadmissible by the Court, therefore, unlike Dallago, there was no prior ruling on whether it was admissible or prejudicial. In fact, the Clay draft letter is a draft of Government Exhibit 191 which was received in evidence without objection by the defendant. Thus, like the Summary, it is at most cumulative. Indeed, there are only slight differences between Government Exhibit 191 and the Clay draft letter, and the fact that the jury may have reviewed and considered those differences would not prejudice the defendant.

It is also significant that the defendant has been unable to articulate any ground upon which the Court can conclude that the Clay draft letter was prejudicial to the defendant. Simply stated, it was not prejudicial. Both the final letter (Government Exhibit 191) and the Clay draft letter (Court Exhibit 5B) set forth various complaints which the defendant had against HUD in that agency's handling of the Clifton Terrace project, and further sets forth the view that HUD was the cause for many if not all of the problems at Clifton Terrace. Both letters might well be considered self-serving statements by the defendant, or self-serving statements made on behalf of the operators of Clifton Terrace.

The Court of Appeals reversed the conviction and ordered a new trial citing United States v. Ware, 247 F.2d 698 (7th Cir.1957) and Sanchez v. United States, 293 F.2d 260 (8th Cir.1961) as authority therefor. The court concluded that the notations on the envelopes were not admissible and noted that the "principle that the jury may consider only matters that have been received in evidence is so fundamental that a breach of it should not be condoned if there is the slightest possibility that harm could have resulted." 385 F.2d at 550-551. The Court did not really set forth why it felt the defendant would be prejudiced and why the submission of the evidence amounted to other than harmless error, but the answers to those questions are probably found in the court's citation to Ware and Sanchez.

The facts in Ware were similar to those in Adams. In a narcotics case, the jury was allowed to see the agent's notations on the evidence envelope. The Ware court, like the court in Adams, found that the written statements were not admissible, but then went on to determine whether the error was harmless. See Fed.R.Crim.P.52. The court noted that the argument that the error was harmless was based on the Government's contention that the agent had testified to those facts, and that the person who wrote the statements in question, was present in court and subject to cross examination. The Government also argued that there was "overwhelming evidence" of the defendant's guilt. The Court of Appeals rejected the argument however because it concluded, that when the statements were submitted to the jury, the jury "had before it a neat condensation of the Government's whole case against the defendant." 247 F.2d at 700 (emphasis the Court's). The court further observed that, "the Government's witness in effect accompanied the jury into the jury room." Id.

In Sanchez, the trial court admitted the hearsay testimony of an agent concerning a conversation the agent had with an informer, on the grounds that it was merely cumulative of the informer's later testimony where the Government refused to vouch for the credibility of the informer and made it clear that no reliance was placed on the informer's testimony. 293 F.2d at 265. The Court of Appeals reversed however, noting that the hearsay statements attributable to the informer directly contradicted the defendant's testimony in the case.

The defendant argues that the Court should not have given the Pinkerton instruction. See Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). First, the Court notes that the defendant did not really argue at trial that the Pinkerton instruction should not be given, but rather argued that it should be given in a different version than that submitted by the Government.

Second, the Court is satisfied that the instruction as given was proper under the facts of this case, and further that this case is distinguishable from United States v. Sperling, 506 F.2d 1323, 1341-1342 (2d Cir.1974), cert. denied, 420 U.S. 962, 95 S. Ct. 1351, 43 L. Ed. 2d 439 (1975), cited by the defendant. Briefly stated, Pinkerton is a rule of vicarious liability which recognizes that the overt act of one member of the conspiracy is attributable to the other partners in crime. In Sperling, the Court was concerned that the inverse of what was involved in Pinkerton was at work; in other words that the conspiracy could be inferred from the evidence of the substantive crime rather than the reverse.

Here, the instruction given by the Court was quite clear since the jury was advised to determine whether the Government had established beyond a reasonable doubt that the defendant was a member of the conspiracy. In this connection, the Court in giving the Pinkerton instruction specifically referred the jury to its conspiracy instruction and advised them that if they should find the defendant guilty of the conspiracy then she could be found guilty of a substantive crime committed in furtherance of the conspiracy, provided it was foreseeable by her, even if she did not commit the acts constituting that offense. Under the Court's instruction, and indeed, under the facts of this case, the jury was not permitted to infer the conspiracy from the evidence of the substantive offenses.

In sum, the Court finds that the Pinkerton instruction was a proper instruction in this case under the facts of this case, and that the instruction properly informed the jury of the law of vicarious liability. So much of the motion for a new trial or for judgment of acquittal as is based upon giving the Pinkerton instruction is denied.

V

The Court finds that the other arguments made by the defendant in support of her motion for judgment of acquittal or in the alternative for a new trial warrant little comment.

The defendant argues that the Court should grant her motion for judgment of acquittal on the ground that the evidence does not support the verdict. This argument must be rejected because there was sufficient evidence in which the jury could find the defendant guilty beyond a reasonable doubt. The jury must consider all of the evidence and weigh the credibility of the witnesses and consider any justifiable inferences based on proven facts. Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied 331 U.S. 837, 67 S. Ct. 1511, 91 L. Ed. 1850 (1947). To state it differently, the Court is required to grant the motion only if, after considering all of the evidence, the Court concludes that there must be a doubt in a reasonable mind. Id. The Court cannot make such a determination in this case. See also, Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); United States v. Staten, 189 U.S.App.D.C. 100, 581 F.2d 878 (1978).

Next, the defendant argues that the Court should reject the testimony of Zellane Laney and, in effect, strike her testimony. This argument also lacks merit. Although it is true that there were differences in her testimony given at trial and that given before the grand jury, there appeared to be little difference insofar as the substantive facts were concerned. Moreover, as the Court noted earlier in Part II, supra, the defendant had ample opportunity to exploit perceived differences, and to argue those differences to the jury.

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